B.K. Behera , J.
1. According to Murrey Strawe, family is the most violent of all civilian institutions. It is really so? The case presented by the prosecution in this case may provide a pointer. A husband is alleged to have killed his wife and his own daughter is the principal witness for the prosecution besides the wife of his nephew who had been staying in his house and looking after his properties. The case presents a violent act on the part of the husband and also a violent attitude on the part of his close relations in involving him.
2. The appellant is alleged to have done to death his second wife Sundari Dei (hereinafter referred to as the deceased) whom he had taken in marriage after he and his first wife failed to get a son. The reason for the murder, which occurred during the night of May 17/18, 1979 in village Madanpur in the district of Cuttack, by the appellant along with his two companions, unknown and unidentified, by inflicting blows on the chest of the deceased with a dagger, was the refusal of the deceased to allow and keep in his house his daughter Gouri, born through his first wife and Guari's husband to look after him and his properties, after which the appellant had remained in Calcutta and had forlorn the deceased and the other members of his family and did not even send money for their sustenance. On the basis of the F.I.R. lodged by Ramachandra (P.W. 5), a nephew of the appellant, investigation was taken up and on its completion, a charge-sheet was placed. On commitment, the appellant was prosecuted being charged Under Section 302 of the Penal Code.
3. To bring home the charge, reliance had been placed by the prosecution on the evidence of eight witnesses of whom P.W. 5 was the first-informant and P.Ws. 1 and 3 had testified about their seeing the appellant with a bloodstained dagger near the deceased who succumbed to the injuries sustained by her. Duryodhan Mohanty (P.W. 2), one of the two neighbours, the other being Bidyadhar Swain (not examined), had given evidence that P.W. 1 had informed him about the occurrence during the night itself when he came to the house of the appellant on hearing a hullah. The appellant had denied the allegations made against him and as would appear from his statement and the suggestions made to the witnesses for the prosecution, his plea was that P.W. 5, who had set up P.Ws. 1 and 3 who were under his care and custody to falsely involve him in the crime. On a consideration of the evidence, the learned Sessions Judge held that the prosecution had established its case. For his conviction Under Section 302 of the Penal Code, the appellant has been sentenced to undergo imprisonment for life.
4. While Mr. A.K. Baral appearing for the appellant has challenged the order of conviction as unfounded and based on false and tainted evidence, Mr. M.R. Mohanty, the learned Additional Standing Counsel, has supported the order of conviction.
5. A very strong motive would prompt a husband to kill his wife. Vatsyayana had said :
Wife in half the man, the best friend, the root of the family and its perpetuity, the source of well-being.
There was no evidence worth the name of any highly strained relationship between the appellant and the deceased who was his second wife, although (he prosecution sought to show that after the deceased disagreed with the appellant when the latter proposed to keep in his house his daughter Gouri and her husband to look after his properties, the appellant remained in Calcutta and did not bother for the deceased. The evidence of P.W. 1 was that her father had been serving in Calcutta for a long time. She had, in addition, stated in her cross-examination that her father used to write letters and send money in the address of P.W. 5 who had also testified about communication between himself and the appellant throught letters. There was also the evidence of P.W, 3 that the appellant had been coming at times to the village. The evidences of P.Ws. 1,3 and 5 that the appellant had ill-treated the deceased when the latter refused to accede to the proposal made by the appellant to keep his daughter Gouri and her husband in his house and had even assaulted her had not been supported by any of the co-villagers. The prosecution had thus failed to establish any motive on the part of the appellant to kill his wife. The prosecution is not obliged to establish motive for the commission of a crime and in some cases, motive may be known only to the perpetrator and no one else. But absence of proof of motive would keep the Court on its guard to examine the prosecution evidence with great care before the same is acepted. [See : 1955CriLJ1653 Atley v. State of Uttar Pradesh].
6. The main evidence on which the prosecution had banked was that of P.Ws. 1 and 3. Both of them had testified that on hearing the cry raised by the deceased that she was being killed, they woke up and found the deceased, who had been sleeping in the same room with P.Ws. 1 and 3 with the door locked from inside and with no other entrance thereto, had been lying with injuries on her person in the courtyard near the door with the appellant standing near her with a bloodstained dagger and two unknown and unidentified persons standing near him. Their evidence was that they could properly identify the appellant as the two other persons had been focusing torchlights where the deceased had been lying and the appellant had been standing and as they raised a cry, the neighbours including Duryodhan (P.W. 2) and Bidyadhar (not examined) came and they narrated to them what they had seen. Both of them had given evidence that P.W. 5 was absent from the house during the night of occurrence and when he returned on the day following, they narrated the occurrence to him after which P.W. 5 went to the police station to lodge a report. P.W. 5 had disowned the statements made by him in the first information report although the evidence of the Investigating Officer (P.W. 7) was that it had been read over and explained to him before he signed it. The reason is not far to seek. The statements made therein were inconsistent with the evidence led at the trial and in addition, there had been important omissions made in the first information report which would affect the veracity of the case of the prosecution.
7. P.W. 1 is the daughter of the appellant and the deceased. She did have some brothers born through her mother, but in the, circumstances in which she had been placed, having lost her mother and with her father facing a charge of murder, she was under the clutches of P.W. 5 who had been residing in the house with his wife (P.W. 3) claiming himself to be the adopted son of the appellant and looking after his properties and was thus in a dominating position. The evidence of P.W. 1 cannot glibly be accepted merely because it has not been shown by the appellant as to why she should falsely envolve him. P.W. 3 is no other person than the wife of P.W. 5. The learned Sessions Judge went wrong in observing that there was nothing to show that P.W. 5 had been interested in showing that he was the adopted son, in view of his own assertion about such adoption by the appellant, who, as testified by P.W. 5, had also got him married, and the statements of P.Ws. 1 and 3 also in their evidence in this regard, although P.W. 5 had given the name of his natural father at the initial stage of his deposition. It is not for us to judge, however, in this case as to whether P.W. 5 had been adopted by the appellant. The evidence of P.Ws. 1, 3 and 5 required very careful scrutiny. We are constrained to observe that their evidence had not been scrutinised by the trial Court as carefully as it ought to have been.
8. An important feature which must be kept in mind while scanning the evidence of P.Ws. 1 and 3 is that the investigating agency had got their statements recorded in the course of investigation Under Section 164 of the Cr.P.C. although no such statement of P.W. 5 had been got recorded. Thus P.Ws. 1 and 3 had been bound down to their statements made on oath before a Magistrate so that they would have but a theoretical freedom to depart from those statements as a prosecution for perjury could be the price of such freedom. No fault can be found with the investigating agency for getting the statements of some material witnesses recorded in the course of investigation, but their evidence is to be examined with great care before the same is accepted. [See : 1968CriLJ1473 Ram Charan v. State of U.P. and : 1974CriLJ1486 Balak Ram v. State of U.P.].
9. At the relevant time, the appellant had been serving in Calcutta. The investigating agency could have found out as to at what point of time the appellant was in Calcutta serving as he did in that city and as to when and how he left Calcutta, It had not been shown either as to when and how the appellant left the locality after commission of the offence. As has been rightly submitted on behalf of the appellant, there was complete absence of materials in this regard which could be gathered in the course of investigation and placed at the trial, but had not been.
10. In the circumstances of the case, the conduct of P.W. 5, who was said to be absent from the house during the fateful night, as asserted by him, ought to have been properly probed into by the investigating agency. He had claimed to have gone to village Chakradharpur for letting out a petromax light to Petambar Lenka of that village and his evidence was that he returned at about 7 to 8 a.m. in the morning of the day following. Although his evidence had found support in that of P. Ws. 1 and 3, there was no independent evidence in support of this assertion made by P. W. 5. Pitambar Lenka of Chakradharpur had not been examined as a witness for the prosecution. Thus the assertion of P.W. 5 in this regard had not been substantiated.
11. Keeping the aforesaid aspects in mind, we would proceed to examine the evidence of P.Ws. 1, 3 and 5.
12. It would be seen from the evidence of P.Ws. 1 and 3 that both of them and the deceased had slept in the same room which had been locked from inside. It has not been explained by the prosecution as to how the appellant or any of the co-culprits could enter the room and bring out the deceased to the courtyard. The evidence of both these witnesses was that they had seen the deceased who had sustained injuries on her person lying in the courtyard and not inside the room where they had been sleeping. The Investigating Officer (P.W. 7) had stated that the room occupied by the deceased had but one door. He had also stated that he did not notice any mark of violence either on the door or on the walls of the house occupied by the deceased. It was also in the evidence of P.W. 3 (sic) came to the courtyard had not been damaged by violence. There was no evidence that the deceased had gone out herself on being called by anyone. If the deceased had been dragged from inside the room, she would certainly have raised a cry inside the room which would attract the attention of P.Ws. 1 and 3 and others sleeping in that room. The prosecution had completely failed to show as to how the deceased sleeping in a locked room was for . the first time seen outside that room with injuries on her person, as claimed by P.Ws. 1 and 3.
13. According to P.W. 1, she heard a hulla at about midnight raised by the deceased that someone had attacked her and that she was dying and hearing this cry, she woke up and found that her father (appellant) was standing near the deceased with a dagger in his hand stained with blood with two other persons, who were outsiders, standing nearby and as they had been focusing their torchlights where the deceased was lying injured, she could identify her father. She had further testified that she cried aloud for which her brother's wife (P.W. 3) came and by the time she was coming, her father had escaped with the dagger in his hand and thereafter she and P.W. 3 took her injured mother inside the house where she succumbed to the injuries. She had further given evidence that after she raised a cry, P.W. 2 and Bidyadhar rushed to the house and she disclosed before them that her father had stabbed her mother by means of a knife and had escaped. P.W. 3 had not. in terms, stated about any cry having been raised by P.W. 1. Her evidence was that on hearing a hulla that someone was being killed, she woke up and came to the courtyard and found the deceased lying in the courtyard with face upwards and she had bleeding injuries on her head and chest. According to her, the appellant was standing at a distance of 3 to 4 cubits from the deceased with a blood-stained dagger in his hand and she noticed two other persons focusing their torchlights for which the appellant could be identified and the deceased could be completely visible.
14. P.W. 3 had not given evidence about any information having been given by her to P.W. 2 and Bidyadhar. But the evidence of P.W. 1 was that she and P.W. 3 informed P.W. 5 that the appellant inflicted injuries on the deceased. This would show that they had not informed him that there were two other persons who had been focusing torchlights for which they could identify the appellant. Although they had not actually seen the appellant inflicting injuries on the deceased, P.W. 1 had claimed to have informed P.W, 5 about it. She had admitted in her cross-examination that she had not seen actually the infliction of injuries on the person of her mother. As slated by her, she told P.W. 2 and Bidyadhar that her father came to their house and after inflicting injuries with the knife on the person of her mother, escaped. Thus she had made a statement before them about an event she had not, in fact, seen.
15. The evidence of P.W. 1 with regard to the words uttered by the deceased while raising the cry in her evidence in the court and in her statement in the course of investigation was not consistent. She had not stated before P.W. 7 during the investigation that she had found her father standing with a dagger stained with blood near her mother. While in the Court, she had stated that the two other persons had been standing in the courtyard, she had stated in the course of investigation that she had found them standing near the entrance door. While in her evidence, she had stated that the two persons standing near the appellant had been focusing torchlights, she had stated in her cross-examination that one of them was focusing a torchlight towards the deceased. P.W. 3 had not stated to the Investigating Officer about any cry having been raised by the deceased. She had not stated either that she had found the appellant standing at a distance of about 3 to 4 cubits from the deceased when she came out of the house.
16. As testified by P.W. 2, on hearing a hulla raised during the night, he rushed to the scene and was informed by P.W. 1 that her father came, stabbed her mother and went, As the prosecution evidence would itself show, P.W. 3 had not disclosed to anyone during the night about what she had claimed to have seen and heard. Although according to the prosecution, two neighbours, namely, P.W. 2 and Bidyadhar had come to the scene, it had chosen not to examine Bidyadhar. This, in our view, was not fair because had he been examined, the defence might have been in a position to get some material contradictions in the evidence of P.W. 2 and Bidyadhar. As would be seen from the evidence of P.W. 2, P.W. 1 had not informed him that she had seen the appellant standing with a bloodstained dagger near her mother or that two other persons were present and had been focusing torchlights from which she could identify her father during the night.
17. According to P.W. 5, P.Ws. 1 and 3 informed him that while all of them were asleep, they heard a cry being raised by the deceased at about midnight and on hearing this, P.W. 1 first came out being followed by P.W. 3. His further evidence was that P.Ws. 1 and 3 told him that they found the deceased lying with face upward in the courtyard with bleeding injuries on her person and they saw the appellant standing near the deceased with a blood-stained dagger in his hand. They had specifically told him that two persons were standing near the door and were focusing torchlights and with that light, they could identify the appellant who, on being seen by them, went away with the two other persons. The assertion of P.W. 5 in his evidence that the contents of the first information report had not been read over to him although he had signed it would be belied by the evidence of the Investigating Officer (P.W. 7). P.W. 5 had not stated while lodging the report that he was informed by P.Ws. 1 and 3 that they found the appellant standing with a bloodstained dagger in his hand near the place where the deceased was lying injured or that they could see the appellant by the light of the torchlights being focused by the two persons. On the other hand, he had stated therein that he was informed by P.Ws. 1 and 3 that the appellant and two other unknown persons accompanying him came, stabbed the deceased, took away life and went away. What had been stated in the first information report would show as if P. Ws. 1 and 3 had actually seen the stabbing by not only the appellant, but also by two other persons on the person of the deceased. This was not their evidence in the Court, No doubt, the first information report, strictly speaking, can corroborate or contradict its maker and no one else, but omissions of important facts in the first information report affecting the probabilities of the case are relevant Under Section 11 of the Evidence Act in judging the veracity of the prosecution case. (See : 1975CriLJ870 Ram Kumar Panda v. State of Madhya Pradesh). It appears to us that P.W. 5 had designedly and deliberately resorted to falsehood by disowning his own report to explain away the inconsistencies in the evidence and the contents of the report and the significant omissions in the report.
18. It is unthinkable that the appellant, no other person than the husband of the deceased and the father of P.W. 1, would choose to remain on the spot with a blood-stained dagger in his hand even after a cry was raised by the deceased and what is highly improbable is that two persons, who had accompanied the appellant to the scene of attack, would be focusing the torchlights at a time when the inmates of the house would be coming out one by one as if they had been taken to the scene of attack to facilitate the identification of the assailant by the focusing of the torchlights at the deceased lying in the courtyard where the appellant was said to be standing with a blood-stained dagger. Such evidence would not stand to commonsense, such less to reason. After the assault on the person of the deceased and after she raised a cry, the normal and natural conduct on the part of the appellant would be to run away from the scene of attack and escape instead of continuing to stay there to involve himself in the crime by creating evidence against him.
19. Although not deposed to by P.W. 1, P.W. 3 went to the length of stating in her evidence that the appellant had been wearing a striped underwear and a banian (M.Os.II and III) when the occurrence took place. There was, however, no substantive evidence before the Court as to wherefrom these articles had been seized. Therefore, this part of the evidence of P.W. 3 can be of no avail to the prosecution.
20. As noticed by us, P.Ws. 1 and 3 and even P.W. 5 have gone to the extent of making inconsistent statements at different stages with the evident purpose to strengthen the case of the prosecution. There can be no doubt that the evidence of P.W. 1 is as tainted as that of P.W. 3. The tainted evidence of one witness cannot be corroborated by the evidence of another of the same tainted character. P.Ws. 1 and 3 have improved upon their earlier versions. Both of them had claimed to have seen the appellant standing near the deceased although they had not earlier stated so before, P.W. 2 and in the course of investigation. The Court is to be on guard to examine and sift the evidence of such witnesses with extraordinary caution. Evidence is not to be rejected on flimsy grounds or petty omissions by the witnesses in their earlier statements, as observed in AIR 1984 SC 207 : 1983 Cri LJ 1923 State of Rajasthan v. Sukhpal Singh, but as has been laid down by the Supreme Court in : 1984CriLJ814 Vinod Chaturvedi v. State of Madhya Pradesh, no credence can be laid on the evidence of eye-witnesses who are willing to change their testimony to suit any story put up by the prosecution.
21. For the aforesaid reasons, we have no hesitation to conclude that the evidence of P.W. 1,3 and 5 with regard to the occurrence is untrustworthy. The impugned order of conviction based on such evidence cannot be sustained.
22. We would allow the appeal, set aside the order of conviction and sentence recorded against the appellant and direct that he be set at liberty forthwith.
S.C. Mohapatra, J.
23. I agree.